March 2021 – Electronic Discovery Law

Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.

The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.

Nature of Case: Employment

Electronic Data Involved: Text Messages, iMessages, Cellular Phone

Case Summary

Doubleline Capital LP v. Odebrecht Fin., Ltd. (S.D.N.Y. 2021)

Mar 30 2021

Key Insight: Plaintiffs sought sanctions against defendants for intentionally destroying the encryption keys needed to access its internal “shadow” accounting system used to track illicit bribe payments to secure construction contracts. The court imposed sanctions against defendants under Rule 37(e)(1) to allow the jury to consider evidence surround the destruction of the encryption keys but declined to impose a mandatory adverse inference requested by plaintiffs under Rule 37(e)(2) because the moving party did not demonstrate that defendant destroyed the electronic evidence “with the intent to deprive the other party of the information’s use in the litigation” – with the required intent to be established by clear and convincing evidence.

Nature of Case: Securities Fraud

Electronic Data Involved: Encryption Keys

Case Summary

Brown v. SSA Atlantic (S.D. Ga. 2021)

Mar 16 2021

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Copenhaver v. Cavanga Group S.p.A Omeca Division (D. Mont. 2021)

Mar 12 2021

Key Insight: If a motion to compel is granted, the party whose conduct necessitated the motion is required to pay reasonable expenses in making the motion, including attorney fees. However, payment cannot be ordered if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action.”

Nature of Case: Products Liability

Electronic Data Involved: Email, Electronic Documents Generally

Case Summary

Mahboob v. Educational Credit Management Corp. (S.D. Cal. 2021)

Mar 01 2021

Key Insight: Plaintiff brought a (potential) class action lawsuit against Defendant for invasion of privacy based on Defendant recording phone calls without the consent of the other party. After bringing the suit, Plaintiff discovered that the call data and recordings had been deleted. Plaintiff filed a Motion for Sanctions against Defendant were both forms of ESI based on intentional spoliation of evidence.

Defendant had placed a legal hold on requested data but also failed to suspend its data retention policies. Plaintiff’s Motion for Sanctions regarding deleted call data was purportedly delayed by Plaintiff because the litigation was stayed for approximately two years while an appeal was pending. The Court found that Plaintiff’s Motion for Sanctions regarding the deleted call data was untimely, and therefore, denied it on such grounds.

The Court partially granted and denied Plaintiff’s Motion for Sanctions regarding the deleted call recordings, finding that Defendant should not have deleted the call recordings, but did not do so intentionally. Plaintiff was awarded attorney’s fees for having brought the Motion, but the Court declined to impose a sanction of a jury instruction regarding spoliation because the call recordings per se were not relevant to proving Plaintiff’s case.

Nature of Case: Invasion of Privacy

Electronic Data Involved: Phone Calls, Phone Call Data

Case Summary

Archive - March 2021